Shah & Anor v HSBC Private Bank (UK) Ltd

Standard disclosure is governed by the precise categories in CPR Part 31.6. A general test of relevance, potential forensic advantage or possible disadvantage cannot replace those categories.

Where part of a disclosed document is redacted, the concealed information must itself fall within a prescribed category. Information which might lead to an inquiry that might undermine the disclosing party’s case is insufficient. Speculation about possible bad faith does not establish that concealed identities adversely affect that party’s case or support its opponent’s case.

Bank customers claimed substantial damages arising from delays in executing payment instructions. The bank alleged that its nominated officer suspected that the transactions concerned criminal property and had made disclosures under Part 7 of the Proceeds of Crime Act 2002.

Following an earlier summary judgment and appeal, reported as [2010] EWCA Civ 31, the bank was required to prove at trial that it genuinely held the alleged suspicion. It disclosed internal reports but redacted the identities of employees below the nominated officer in its reporting chain.

Coulson J held that standard disclosure required those identities to be revealed, although public interest immunity prima facie protected them. The customers appealed against the permitted anonymity, while the bank cross-appealed against the finding that the names fell within standard disclosure. The principal issue was whether the redacted identities satisfied CPR Part 31.6.

1. The customers’ appeal was dismissed and the bank’s cross-appeal was allowed. Lewison LJ gave the leading judgment. Munby and Pill LJJ agreed with the disposition. The bank was not required to disclose the names of the employees whose internal reports had contributed to its nominated officer’s consideration of the transactions.

2. Standard disclosure is confined to the categories stated in CPR Part 31.6. The word “relevant” does not appear in the rule, and a general inquiry into potential litigious advantage or disadvantage cannot replace its carefully chosen language. Pre-CPR formulations derived from Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 must not be used to restore the wider train-of-inquiry test which the Civil Procedure Rules superseded.

3. The principles governing the concealment of part of a document continue to apply under the Civil Procedure Rules. The concealed information must itself satisfy the governing disclosure test. It was therefore necessary to ask whether the employees’ identities adversely affected the bank’s case, supported the customers’ case, were relied upon by the bank, or were required by a practice direction.

4. The identities did not meet any of those categories. The bank did not rely upon them, and the customers’ remaining case merely required the bank to prove that its nominated officer had held a genuine suspicion. The suggested possibilities of employee ill-will or bad faith were speculative and unsupported by the documents or pleadings. At most, disclosure might have led to an inquiry which might have affected the bank’s case. That was insufficient under CPR Part 31.6.

5. The bank’s decision to rely on its nominated officer while withholding other identities might make its own proof more difficult, but that was its forensic choice. It did not make the identities disclosable. Pill LJ added that the rationale of avoiding unfair forensic advantage or disadvantage remained relevant, provided it was assessed through the requirements of CPR Part 31.6.

6. Because standard disclosure did not require the names, the questions whether public interest immunity prima facie protected them and how any competing public interests should be balanced did not arise.

1. Court of Appeal (Civil Division): The customers’ appeal was dismissed and the bank’s cross-appeal was allowed by [2011] EWCA Civ 1154. The employee identities did not fall within standard disclosure, so public interest immunity was not determined.

2. High Court, Queen’s Bench Division: Coulson J held that standard disclosure required the identities to be revealed and that public interest immunity prima facie applied. He permitted identification by function, although that would not in fact preserve anonymity.

3. Earlier Court of Appeal proceedings: In [2010] EWCA Civ 31, the court held that the bank had to prove at trial that it genuinely held the alleged suspicion.

4. Earlier High Court proceedings: Hamblen J had granted summary judgment to the bank and dismissed the claims.